Stephen Smith MP
Minister for Defence
Thank you for that introduction.
Professor Bill Ford, Dean of the Law School, University of Western Australia, and together with Greg Boyle, Joint Chair of the Organising Committee.
Hylton Quail, President, Law Society of Western Australia.
The Chief Justice of the Supreme Court of Western Australia, Wayne Martin.
Justices and retired Justices, of whom I single out two, both outstanding alumni of the UWA Law School Class of 1977, Carmel McLure and Ken Martin.
My State Parliamentary and Ministerial colleague Christian Porter, the Attorney-General of Western Australia.
Ladies and Gentlemen.
First can I say how pleased I am to return to my old Law School to take part in Law Summer School.
This plenary session deals with a dual topic: International Legal Relations and Doing Business with China.
I will deal substantially with the role that the rule of law plays in International Relations, including the rule of law as a basis for national security policy.
Given the importance of the rise of China both to our region and to Australia’s economic future, I will also make some remarks about China in that context.
First, the important legacy that the University of Western Australia Law School has given us.
It has a proud and notable community of alumni, some of whom have gone on to become Judges of the State, Federal and High Courts, in the case of Class of 1971 graduate Bob French, the Chief Justice of the High Court; and Federal and State Ministers, in the case of Class of 1951 graduate Bob Hawke, Prime Minister of Australia.
As well as producing jurists, it has since its inception played its part in building respect for the law and respect for the rule of law.
International Law
Respect for the rule of law, domestically and internationally, is essential to the co-existence of individuals, for trade and commerce and for the comity of nations.
As with the domestic law that governs our conduct as individuals, the Treaties, Conventions and principles that help guide, direct and underpin international relations in both peace and war are the standards to which nations commit, and by which their behaviour is judged.
As a middle sized country, Australia’s long-term national security interests depend today, as they have for decades, on having strong and effective international institutions, norms and rules.
International terrorism, climate change, food security, the proliferation of weapons of mass destruction, cyber security and the use of space are global security challenges that no one country, Australia included, can address on its own.
The international community has a responsibility to not just abide by and enforce international law, but to continue to create international law, norms and practices as they apply to new challenges such as these.
An activist tradition
As that is true today, so it was true at the birth of the post-World War Two new international order.
Prime Minister John Curtin knew this.
Curtin is a hero in Western Australia, not because he was a Prime Minister who lived in Cottesloe, but because he led Australia through a World War and established Australia’s Alliance with the United States.
Just as important, he articulated a clear-eyed vision of Australia's place in the world, supporting a new global order based on international law and the conduct of nations underpinned by adherence to its principles and its norms.
Less well known than Curtin’s United States Alliance effort is the fact that before his death he sent Australia's delegation to the United Nations Conference on International Organisation in San Francisco in April 1945.
Thanks largely to the work of that delegation and its leader, Curtin and Chifley’s Foreign Minister Herbert Vere (Doc) Evatt, the draft United Nations Charter was re-crafted to enhance the General Assembly's authority and take greater account of the interests of smaller and middle powers.
The resulting United Nations Charter, and the rules and norms that have emerged from and under it since, have for over 60 years informed the conduct of international relations and Australian defence and foreign policy.
Subsequent Australian Governments have upheld Curtin’s internationalist legacy and his redefinition of Australia's place in the world, and have done that in a manner consistent with and supportive of the development of international legal principles.
For example, Australian troops were arguably the first personnel to be deployed to keep the peace under United Nations auspices when they were sent to monitor the ceasefire between the Dutch and fledgling Indonesian forces in 1947.
Through assisting in the delineation and supervision of the ceasefire between Indonesian and Dutch forces, and monitoring the repatriation of Dutch forces to the Netherlands, Australia helped lay the foundations for the practices, norms and law of international peacekeeping.
Building on this tradition
The current Australian Government sits firmly within these traditions.
Our membership of the United Nations and the international legal obligations and responsibilities that brings is a fundamental pillar of our approach.
Since 1947 Australian Defence Force personnel have made contributions to more than 50 United Nations and other multilateral peacekeeping operations around the world. More than 65,000 Australians have served as peacekeepers.
Today, Australians serve in peacekeeping operations in Cyprus, East Timor, the Middle East, Solomon Islandsand Sudan.
As active as Australia is on the ground, we are also continuing to help build and strengthen the legal and policy framework for peacekeeping operations.
The protection of civilians in armed conflict is a fundamental principle of international humanitarian law. The international community needs to ensure that as we increase the use of a peacekeeping mandate, we also adequately manage and resource those operations in which it is employed to ensure that in a practical sense we protect civilians on the ground.
Australia also strongly supports the principle of the “Responsibility to Protect”, or “R2P” as it has become known. It holds that States are responsible for the protection of their own civilians from heinous mass crimes such as genocide, war crimes, ethnic cleansing and crimes against humanity.
Further, it enunciates the international community’s responsibility to use diplomatic, humanitarian and other peaceful means to help protect populations. In appropriate circumstances, the R2P principle calls on the Security Council’s authority to mandate decisive action to prevent mass atrocity crimes.
Our contribution in this area, and Australia’s wider tradition of multilateral activism, shows the practical approach we would bring to the United Nations’ pre-eminent body on international peace and security, the UN Security Council, if elected for the 2013-14 term.
Afghanistan
Just as we continue to help build international law and international norms to enhance stability and peace, so international law governs our actions when use of force becomes necessary.
In Afghanistan, law anchors the international community’s effort to counter terrorism and build Afghanistan’s capacity so that international terrorists are unable to re-establish their presence.
The force of international law, and the protection it offers the Afghan people, clearly distinguishes the international effort in Afghanistan from the actions of the Taliban and its associates.
Following the terrorist attacks of 11 September 2001, the Australian Parliament passed a unanimous resolution invoking articles 4 and 5 of the ANZUS Treaty and the commitment of Australian forces in support of United States-led action against those responsible for the terrorist attacks.
United Nations Security Council Resolution 1386 of December 2001 authorised the establishment of an international security force in Afghanistan under Chapter VII of the UN Charter, the Chapter which governs “the use of force in defence of international peace and security”.
This Security Council resolution has been renewed on ten occasions since then.
It remains the compelling legal authority for our presence there as part of the 48-nation-strong International Security Assistance Force (ISAF).
On the ground, international humanitarian law – including the principles of military necessity, proportionality, distinction and discrimination – provides the framework for ISAF’s rules of engagement.
The Australian Defence Force has built a reputation over the years for professionalism and compliance with such rules of engagement.
Australian forces take all possible steps to ensure their operations do not endanger the lives of civilians.
Australia also takes seriously its responsibilities for the humane treatment of detainees. Australia’s detainee management framework is based on applicable international standards and is consistent with international humanitarian and human rights law, as well as Australian domestic law.
Under the detainee management framework, detainees apprehended by the Australian Defence Force are released if there is insufficient evidence to justify ongoing detention, or transferred either to Afghan or United States custody.
Australia has in place arrangements with the Governments of Afghanistan and the United States to govern all detainee transfers, which include assurances on the humane treatment of detainees and access to those detainees by Australian officials and humanitarian organisations to monitor their ongoing welfare.
Australia’s detainee monitoring teams monitor the welfare and detention conditions of Australian Defence Force (ADF)-apprehended detainees while they are in United States or Afghan custody until they are either released or sentenced. The monitoring team visits each ADF-apprehended detainee shortly after transfer and approximately every four weeks after the initial visit.
All allegations of mistreatment against ADF-apprehended detainees are fully investigated.
China in the international community
Let me now make some remarks about China’s place in the international community and the relationship between Australia and China.
A defining change in the world order is taking place as power, wealth and strategic influence shift to the Asia-Pacific.
The continuing rise of China is part of this change, as is the rise of India and the rise of the ASEAN economies combined, and the ongoing presence of the United States.
China has been the fastest growing major economy in the world over the past quarter century, with annual growth averaging 10 per cent.
It has gone from an impoverished and largely agrarian economy to an increasingly industrial and urban-centred economy and an engine of world growth.
The economic relationship between Australia and China is underpinned by profound and growing complementarities.
Mutual benefit as well as mutual dependence flow from these complementarities.
The 1980s, under the Hawke Government, signaled a significant expansion in our relationship, with exponential growth in trade and economic ties.
The foundation of this expansion was the growing trade in minerals and petroleum resources, led by exports toChina from our own State of Western Australia.
By 2009, China was Australia's largest trading partner, with two-way trade valued at around A$85 billion, as well as our largest export market and largest market for education services.
This growing trade, conducted in accordance with market principles, is unquestionably important to Australia. It helps Australia maintain low unemployment and contributes to Australia's prosperity.
This trade is also important to China, which increasingly looks to Australia as a reliable source for the diverse array of raw materials, energy and food China needs to sustain high rates of economic growth.
Two-way investment links are an increasingly prominent element of our economic relationship.
Australia maintains, as it has for many years, a consistent, open and welcoming stance towards foreign investment, wherever it comes from, including from China. This policy is well known and of long-standing.
Australia has made itself into a well-developed and prosperous nation by being both a successful trading nation and an attractive place for foreign direct investment.
Australia's welcoming policy towards investment from China is borne out by the facts.
Last year, China was Australia's second largest source of foreign direct investment approvals, jumping from sixth place in the previous year.
Since the Government came into office in December 2007, Australia has approved around 220 Chinese proposals to invest in Australia, valued at around US$60 billion (A$60 billion).
Only six of these approvals involved undertakings, conditions or amendments. None has been rejected.
While China’s economy in part has been transformed through three decades of policy reforms, China's basic political structure – a centralised state under the leadership of the Chinese Communist Party – remains largely unaltered.
There are other strategically important facts to consider.
China is a nuclear weapons state and maintains the world's largest standing military, the People’s Liberation Army, with advanced capabilities, including ballistic missiles.
China's domestic defence industry is an emerging player in the international arms marketplace.
These strategic realities bring with them responsibilities, including the need for greater openness and transparency in relation to capabilities and strategic doctrine.
As a trading nation, China like Australia has a vested interest in the security of vital international sea lines of transport and communication and in the stability of world markets and in open international trade.
Maritime security presents strategic challenges for our region, due to a combination of factors including dependence on sea lines of communication, threats to good order at sea like piracy, maritime terrorism, illicit trafficking in drugs and arms, people smuggling, pollution, illegal fishing, and marine natural hazards.
As well, in our region and beyond there are a range of unresolved territorial disputes, including maritime disputes, whether in the South China Sea, East China Sea or elsewhere.
Where maritime disputes occur in the region, Australia wants to see these issues resolved amicably and peacefully between the parties concerned in accordance with international law, and in a way which ensures regional stability.
In this regard, China’s cooperation is essential.
A productive relationship with China, based on mutual interest and mutual respect, is unambiguously in Australia's national interest.
We both recognise that we have different histories, different societies and different systems, as well as some differences of view.
Australia is committed to managing these in a straightforward and constructive way, through frank exchange and dialogue, with mutual respect and importantly an eye to the long term.
Conclusion
For national security issues, for peace, stability and security, respect for the rule of law is essential.
For trade and commerce between nations and individuals, for investment and prosperity such respect is also essential.
Respect for the law of contract, for intellectual property, for impartial administration of civil courts.
That is the case whether the nation-state concerned is Australia or China.
Australia is confident and positive about China emerging as a responsible stakeholder, a rising power that wants to take its part in the regional and international community and do so in accordance with accepted international norms.
